ANTHONY SMITH v. COMMONWEALTH OF KENTUCKY
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RENDERED:
FEBRUARY 2, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2004-CA-002199-MR
ANTHONY SMITH
v.
APPELLANT
APPEAL FROM BREATHITT CIRCUIT COURT
HONORABLE W. LARRY MILLER, JUDGE
INDICTMENT NO. 04-CR-00013-002
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: TAYLOR, JUDGE; MILLER,1 SPECIAL JUDGE; ROSENBLUM,2 SENIOR
JUDGE.
ROSENBLUM, SENIOR JUDGE:
Anthony Smith appeals from his August
2004 conviction for second degree assault by a Breathitt Circuit
Court jury.
confinement.
The trial court sentenced Anthony to five years
Finding no error, we affirm.
1
Retired Judge John D. Miller, sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
2
Senior Judge Paul W. Rosenblum, sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
On October 12, 2003, Clark Waterson and Russell
Pelphrey, Jr. were watching Waterson’s son as he rode a fourwheeler on the family’s property.
Waterson allegedly observed
several trespassers on his property at that time, including
Anthony.
Waterson asked the men to leave his property and all
complied except Anthony.
Waterson and Anthony allegedly engaged
in a brief physical confrontation, ending with Anthony’s
departure toward the home of his father, Elmer Smith, Sr.
A
short while later, Anthony returned to the area by pickup truck
with his father, Elmer, Sr., and brother, Elmer, Jr.
Elmer, Sr.
was allegedly driving while Anthony and Elmer, Jr. were on the
back of the truck wielding a stick and claw hammer,
respectively.
As the truck neared, the Smith clan allegedly began
attacking Waterson.
Elmer, Sr. allegedly struck Waterson in the
back with a four-foot carpenter’s level.
Upon seeing his friend
assaulted, Pelphrey intervened and prevented Elmer, Sr. from
further striking Waterson with the level.
Elmer, Sr. allegedly
then struck Pelphrey with the level as well.
Anthony allegedly
struck Waterson in the back of the head and across his shoulders
with the stick.
gun.
Elmer, Sr. ran to the truck and retrieved a
As Elmer, Sr. began waving the gun around, he told Anthony
and Elmer, Jr. to get in the truck.
fled the scene in the pickup truck.
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Elmer, Sr. and sons then
On February 6, 2004, a Breathitt County grand jury
indicted Anthony with second degree assault.3
In August 2004, a
jury trial was held on the charges and Anthony was found guilty
as charged.
On September 24, 2004, the trial court entered its
judgment of conviction and sentenced him to five years.
This
appeal followed.
Anthony argues that there was insufficient evidence to
convict him of second degree assault because the evidence failed
to show that he used or threatened to use an instrument in a
manner capable of causing death or serious physical injury to
Waterson.
We disagree.
KRS 508.020 defines one type of second degree assault
as the intentional infliction of physical injury on another by
means of a dangerous instrument.
A dangerous instrument is
defined as any instrument which under the circumstances in which
it is used or attempted to be used or threatened to be used is
readily capable of causing death or serious physical injury.
See KRS 500.080(3); Commonwealth v. Potts, 884 S.W.2d 654, 656
(Ky. 1994).
Here, both Waterson and Pelphrey testified that
Anthony struck Waterson with a stick.
Regarding the injuries
received, Waterson testified that he was struck in the back of
3
KRS 508.020. Anthony was originally indicted with two counts of second
degree assault, but, upon the Commonwealth’s motion, the trial court ordered
that the second count of the indictment pertained only to Elmer, Sr.
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the head and across his shoulders, suffering painful bruising to
his right upper shoulder.
Such testimony, standing alone, is
sufficient to support a guilty verdict for second degree
assault.
See Commonwealth v. Suttles, 80 S.W.3d 424, 426 (Ky.
2002)(testimony of single witness is sufficient to support
guilty finding, even in the face of contrary witnesses, if after
considering all the evidence, the fact finder assigns it greater
weight).
We also note that the stick4 was introduced into
evidence.
The jury could consider whether it was a “dangerous
instrument” not only based upon sight, but also by way of
witness testimony.
Whether an instrument or object is a
dangerous instrument is a question of fact to be determined by
the jury.
Potts, 884 S.W.2d at 656.
Sufficient evidence was
presented to the jury in order for it to make a “dangerous
instrument” determination.
Waterson testified regarding the
stick and it was properly admitted into evidence.
Such evidence
regarding the stick and the manner it which it was used easily
satisfies the statutory definition of a “dangerous instrument.”
Anthony also argues that the Commonwealth’s reference
to the items used to attack Waterson and Pelphrey as “weapons”
constituted reversible error.
We disagree.
At trial, the
Commonwealth referred to the stick, claw hammer and level as
4
Waterson’s testimony indicates that the stick was apparently a tool handle.
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weapons during its examination of witnesses and during closing
argument.
Anthony argues that the Commonwealth’s reference to
the items as weapons amounted to prosecutorial misconduct.
An
objection was made to the Commonwealth referring to the items as
weapons during the case in chief and the Commonwealth rephrased
its question, without an admonition given to the jury.
However,
Anthony did not object to the Commonwealth’s use of the term
“weapon” during its closing argument.
We note that Anthony did
not properly preserve the issue of error in the closing argument
and is thus not subject to appellate review.5
However, even if
the issue had been properly preserved, we would still be unable
to find reversible error under these facts.
To warrant reversal, prosecutorial misconduct “must be
so serious as to render the entire trial fundamentally unfair.”
Partin v. Commonwealth, 918 S.W.2d 219, 224 (Ky. 1996).
Upon
review, we “must focus on the overall fairness of the trial, and
not the culpability of the prosecutor.”
Slaughter v.
Commonwealth, 744 S.W.2d 407, 411-412 (Ky. 1988).
In light of
the fact that no demonstrable prejudice to Anthony was shown, we
are unable to say that his trial was rendered fundamentally
unfair.
5
We therefore affirm.
See RCr 9.22.
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For the foregoing reasons, we affirm the judgment of
the Breathitt Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Barbara Anderson
Lexington, Kentucky
Gregory D. Stumbo
Attorney General
Clint E. Watson
Assistant Attorney General
Frankfort, Kentucky
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